Legal Ethics and Social Media

The number of lawyers using Facebook, Twitter, LinkedIn and other social media networks grows daily.  So too does the number of lawyers doing foolish and unethical things on those networks.

In this post I highlight some of the more egregious social media missteps made by lawyers in recent years, in the hope that others won’t repeat them.   Then I describe how the NC Revised Rules of Professional Conduct apply to social media both generally and in specific contexts such as investigations, litigation, and client testimonials.  Read more »

Ordinance Enforcement Basics

I am often asked about the steps that local governments may take to enforce their ordinances. This blog post describes the basic enforcement options available to cities and counties.  It is adapted from a section of my chapter General Ordinance Authority in County and Municipal Government in North Carolina (2d ed. 2014). (Shameless plug:  The chapter contains lots of other useful information about the general ordinance authority of local governments.)

The primary statutes setting out the enforcement powers of local governments are G.S. 160A-175 (cities) and G.S. 153A-123 (counties). Collectively, they provide cities and counties with an array of criminal and civil enforcement mechanisms. Read more »

Obtaining Employee Addresses from State Employers

Local tax collectors have long known the power of the attachment and garnishment collection remedy.  With just two pieces of paper, a tax collector may grab the entire contents of a bank account or garnish 10% of taxpayer’s wages until the delinquent taxes are paid. No court involvement, no waiting periods, no need to sell property and hope it produces enough cash to pay the delinquent taxes.

But you can’t garnish wages you can’t find. To help tax collectors locate where taxpayers work, G.S. 105-368(i) authorizes tax collectors to demand employee names and addresses from any employer.  The tax collector can simply compare those employee lists with her list of delinquent taxpayers and then fire off multiple wage garnishment orders.

G.S. 105-368(i) works very well with private employers, especially when the tax office reminds them that employers who refuse to produce such lists can be subject to criminal prosecution.

But state and local government employers have been increasingly hesitant to comply with demands for employee lists for fear of violating state law that makes some public employee information confidential.   Read more »

Federal Agency Utility Customers and the Prompt Payment Act

A federal agency contracts with a North Carolina town to provide water services to the agency’s facility in the town. The agency is routinely late in making its utility payments. The town finally decides to take action after the sixth late payment. In accordance with the town’s customer contract, the town assessed a late fee penalty on the federal agency’s account when payment was not received fifteen days after the bill was issued. The town disconnected service to the federal agency’s facility ten days after the due date, which was twenty-five days after the bill was issued. (State law allows a county or municipality to disconnect service if a bill is delinquent for more than ten days. See G.S. 153A-277; G.S. 160A-314.)

A representative from the federal agency calls the town’s utility director. She is irate and demands that the town reinstate the water service immediately. She claims that federal law allows any federal agency thirty days to pay an obligation. According to the federal agency employee, because federal law trumps state law the utility cannot penalize the federal agency for any payments made during the thirty-day window after the agency receives the bill. She further refuses to pay the late fee penalty imposed on the account due to the delinquency, arguing that even if the payment was late federal law specifies the amount of interest that is due in the event of a late payment. How should the town respond? Read more »

Reimbursement Agreements

A developer in town is seeking approval for a large new real estate project. The zoning and subdivision ordinances call for the developer to construct and dedicate public streets and parks and water infrastructure. But, the city has plans for some additional improvements adjacent to the development—a greenway on adjoining property and some intersection improvements nearby. The developer’s contractors will already be on site, grading land and constructing improvements. Could the city just pay the developer to build the city’s improvements, too?

The answer is yes. But, of course, there are limits and procedural requirements. Cities and counties may enter into agreements for certain improvements—beyond those required as part of the development approval—to be made by a developer. The General Statutes include overlapping authority for contracting for public enterprise improvements, roadway improvements (cities only), as well as general reimbursement agreements. This blog outlines the basics of those overlapping authorities. Read more »

The “Government Speech” Doctrine and Local Government Meetings: Can the Government Take Sides?

Hydraulic fracturing (“fracking”) may be coming to Pleasantville. The community is deeply divided about it. A majority of the town council strongly favors this opportunity to bring jobs to the area. The board has met with representatives from Extraction Services, Inc. and has reserved time on this month’s regular meeting agenda for a presentation by the company. The company will use this opportunity to advocate against the adoption of restrictions that might increase the cost of their operations. A community group has organized to advocate for legislation authorizing the town to regulate and restrict fracking operations. One of the council members is a member of the anti-fracking group. She thinks that the council should give the opponents equal time on the agenda.

Does the council have any legal obligation to provide time on the agenda for other points of view? Probably not. First Amendment cases have long held that when a forum exists for public expression, the government cannot engage in viewpoint discrimination. It can establish viewpoint neutral rules about where, when, and how the public can speak, but it cannot promote or discriminate against a particular point of view. The developing case law regarding “government speech” recognizes the government’s ability, in certain situations, to take sides. This post explores how the government speech analysis might apply to local government meetings and hearings in North Carolina. Read more »

Advisory Board Review of Quasi-judicial Decisions

Note: Post updated 11/16/21 to incorporate statutory amendments, particularly the adoption of Chapter 160D.

Acme Development Co. is proposing to build a 200-unit apartment project on a vacant lot. Under the city’s zoning ordinance, this use of the site is allowed only if a special use permit is secured.  The ordinance standards for the special use permit set out a variety of technical requirements and require the applicant to show the proposed use will be harmonious with the surrounding neighborhood and that it will not have significant adverse impacts on neighboring property values.  Under the ordinance, the decision on this application will be made by the city council following a formal evidentiary hearing.

This will be a controversial project. The applicant has hired capable consultants who are sure all of the city standards can be met.  On the other hand, residents of the neighboring single-family neighborhood have already raised concerns about traffic, congestion, noise, storm water runoff, and other negative impacts of the character of their neighborhood.

Before the city council takes up Acme’s special use permit application, should it be sent to the planning board for review and comment? Read more »